In an interesting turn of events, via IPS News, Spanish human rights violations during the Franco-era are being heard in an Argentine court.  According to the article, “One of the plaintiffs is 91-year-old Darío Rivas, who is seeking justice in the murder of his father, Severino Rivas, purportedly killed in 1936 by members of Spain’s fascist Falange movement.”

It seems that the plaintiffs are arguing that Argentine courts have proper jurisdiction over the case on the principle of universal jurisdiction.  Of course, universal jurisdiction requires that the court with proper territorial jurisdiction be unable or incompetent to hear the case of their own volition.  So is this the case in Spain?  Well, with Spanish amensty for Franco-era war crimes, and the rail-roading of human rights crusader Baltasar Garzón, it seems pretty clear that Spain has no interest in seeking justice for these victims, and may even be obstructing justice.  So, in the absence of a willing territorial court, any court is competent to try a hostis humani generis.

And of course, these is no small amount of poetic justice that Argentina should pick up the slack for Spain’s human rights failure.  The concept of universal jurisdiction is steadily making strides in promoting global justice.  It will be interesting to see how this plays out.

With a new year comes new challenges to Central Florida and in particular the Orlando and Orange County area.

Tourism is critical to the economic vitality of Orange County, Florida, but  in recent years the tourist industry has come under considerable stress.  The rate of growth for Orlando’s tourist industry is declining and is expected to continue to decline through 2012.[1]  South Florida’s burgeoning gambling market is sapping Central Florida’s convention business, and Orlando may be forced to cede this important market-share in order to preserve the family-centered tourism.[2] Gambling just isn’t a good fit for Orange County.

Orlando can ill-afford to lose the tourist revenue brought in by Walt Disney World, but the loss of convention business certainly hurts. So it seems like any new growth in the tourist industry should be encouraged by the local government.

The Orange County economy just can’t afford to say “no” to growth. But the Board of County Commissioners may be doing just that, if it says “no” to a project proposed by Tinwood Industries for an  expansion to a helipad for a helicopter attraction in an area of unincorporated Orange County near the attractions.  This is a boon for the tourist industry, as the proposed helipad expansion would allow transportation for additional tourists debarking from cruise ships in Cape Canaveral.

In a December 14th interview on WMFE, Orange County Mayor Teresa Jacobs decried the impact of “unneeded bureaucracy” in slowing down the economy.  This seems to be a clear example of a project that may suffer in the face of unneeded bureaucracy.  The Substantial Change application for the helipad has been through numerous delays since it began winding its way through the local government bureaucracy in 2011.  On February 7th, 2012, the Orange County Board of Count Commissioners will meet in a quasi-judicial proceeding to determine if Tinwood’s application for helipad expansion will be heard.  In the current economic recession, it is simply inexcusable that the County Board of Commissioners take any action to inhibit growth in the local tourist industry.

Here’s hoping that Board of County Commissioners and Mayor Jacobs start the year off right, by getting needless bureaucracy out of the way so the tourist industry can grow.

[1] “Total visitation to Orlando that combines domestic and international arrivals are expected to increase 3.7 percent, from 51.5 million visitors in 2010 to an estimated 53.4 million in 2011, and increase 1.8 percent in 2012 to an estimated 54.3 million visitors.” http://www.visitorlando.com/research/visitors/forecast.cfm (Access date December 10, 2011).
[2] Jason Garcia, Push for South Florida casinos splits Orlando’s tourism industry: Convention hotels vs. Disney World, Orlando Sentinel. October, 14 2011 http://blogs.orlandosentinel.com/business_tourism_aviation/ (Access date December 10, 2011).

The doctrine of forum non conveniens is applied with great inconsistency by federal district courts. The forum non conveniens analysis is, to quote Justice Scalia, “multifarious,” but what weight should be given to those factors is left to the trial court to decide, with a de novo standard of review sometimes leading to vastly divergent outcomes in practice. Despite Justice Ginsberg’s famous dictum that the Sinochem case was a “textbook,” example he Supreme Court’s Sinochem decision has been little help in providing a standard of what a forum non conveniens dismissal should look like.  There are many questions left unanswered about the proper application of the doctrine.  What does an “adequate alternative forum” look like, anyway?

The Supreme Court, in setting guidelines for granting a motion for forum non conveniens, has required the existence of an alternate adequate forum. However, beyond the condition that an adequate alternate forum is one where the defendant is “amenable to process,” the Supreme Court has not provided much further guidance. Various factors have been examined to determine whether there is any empirical evidence of what may constitute an adequate alternate forum. For example, there is evidence that district courts in the Third and Fourth Circuits are less likely to find a foreign forum to be adequate. District courts are more likely to consider cases based on diversity jurisdiction to be adequate to resolve in a foreign forum than cases based on federal question jurisdiction. Defense litigants themselves indicate a preference of litigating in the United States versus litigating in countries that lack civil liberties, lack political rights, are politically unstable, have ineffective governments, disregard the rule of law, cannot control corruption, and are not as economically developed. In addition, district courts have been less likely to find an adequate forum in countries with these conditions. Ultimately, there is not evidence that would suggest the legal system in another country, the foreign language spoken, or the amount in controversy have an effect in influencing a district court’s view on the adequacy of the foreign forum.[1]

Although Sinochem reaffirmed the lowered presumption in favor of a foreign plaintiff, there is still little guidance otherwise as to how the factors of a forum non conveniens analysis should be weighed against one another.  As is illustrated by the contrast among the cases discussed earlier, the high degree of judicial discretion renders it almost impossible to define precisely the “multifarious factors” that go into the forum non conveniens analysis.  There is no meaningful yardstick against which to compare a “textbook” case for an immediate forum non conveniens dismissal.  But why should this be a concern?  Some might argue that it would serve the interest of justice to grant the district court judge a wide berth for discretion.

As it stands, the doctrine of forum non conveniens presents an unnecessary obstacle to both parties in cases where it is an issue, and the absence of stricter appellate oversight directly facilitates this inefficiency.  In Sinochem, the Supreme Court has given the lower courts a tightened up version of the forum non conveniens analysis, but left them without the equipment necessary to properly oversee its inevitably inconsistent application.  In the wake of Sinochem, which reaffirmed the lowered presumption in favor of a foreign plaintiff in forum non conveniens analyses, the need for further clarification of the doctrine has already arisen.  This is already reflected by the competing interpretations of the “textbook” language, and more such ambiguities are likely to be found in the broad language of the Sinochem opinion.

Though there may be something to be said about the ease with which the current standard accommodates diplomatic concerns, it is hardly clear that this would satisfy the multifarious analysis as intended by the Sinochem court.  It has been observed that “if inconsistency is the rule – would it not be just as well for the parties to select some other method (perhaps flipping a coin?) to decide the outcome?”[2]  Currently the doctrine of forum non conveniens stands as an impediment to the important goals of predictability and consistency, and thereby affects the very foundation of fairness and efficiency on which the judicial process is based.  Furthermore, since there is no evidence that the competing goal of conservation of judicial resources (by means of docket clearing) is being advanced, it can hardly be said to justify of the problems of the doctrine in its present incarnation.


[1] Michael T. Lii, An Empirical Examination of the Adequate Alternative Forum in the Doctrine of Forum Non Conveniens. 8 Rich. J. Global L. & Bus. 513 at 551 (2009).

[2] Robert J. Thornton and Perry A. Zirkel, The Consistency and Predictability of Grievance Arbitration Awards, 43 Industrial & Labor Relations Review 294.

Fix It Again, Treasury

August 15, 2011

An interesting piece in the Wall Street Journal, suggesting that the sun is setting on fiat money:

Forty years of persistent monetary interventionism have left the economy addicted to cheap credit and continuous asset inflation. Forty years of monetary expansionism have led to distorted prices, misdirected economic activity and unsustainable debt levels. Since Lehman Brothers we know that the accumulated imbalances have become so momentous that a market-driven liquidation of them is deemed politically unacceptable. Credit correction, debt deflation and liquidation—as much as the market is craving them to cleanse the economy of its dislocations—will not be allowed under any circumstances.

The central banks are now boxed in. There is no exit strategy. Low interest rates and further credit growth must be sustained at all cost, and as the private sector becomes reluctant to participate, the state is increasingly the “borrower of last resort” to the central bank’s “lender of last resort.” The Fed will engage in QE3, then in QE4. After mortgage-backed securities and Treasuries, it will be corporate bonds, auto loans and credit card debt that will also end up on the central bank’s balance sheet—and, of course, more Treasurys. The ECB will continue to accumulate the ever-growing debt of European sovereigns. But when the public realizes that the mirage of solvency is only being maintained by ever-faster money creation, the confidence in the state’s paper money will evaporate quickly.[1]

The United States began its monetary history under bimetallism, a monetary policy recognizing both silver and gold as money.  Indeed, gold was the advent, as silver was considered the “ancient money.”[2]  Gold- rarer and more valuable- ultimately came to prominence. But all this changed under President Roosevelt:

In 1933, the U.S. Congress passed the Joint Resolution of June 5, 1933 that abolished all gold clauses in all public and private contracts. This meant that contracts could not require payment in gold. The Gold Reserve Act of 1934 went further, withdrawing all gold coin from circulation to be formed into gold bars. Even the Treasury could not hold gold coin unless it was in the form of gold bullion.  The Gold Reserve Act was intended to “abolish[] gold coin as a component of our monetary system.” Gold was thereafter not money, but rather a commodity. The public could not get gold in the United States. Coin collectors were able to hold gold coins but only those of numismatic value.

Gold remained in circulation for international transactions involving the federal government until 1971 when the U.S. government ceased supplying gold to foreign central banks. In short, hard currency no longer exists in the U.S. monetary system except in the form of coinage. The U.S. government systematically, from 1933 to 1971, obliterated any notion of a value standard by refusing to permit the conversion of its paper money into gold and forcing the acceptance of its inferior paper currency. By putting an end to redeemability, policymakers eliminated an effective means for imposing discipline on government-issued money. The way was opened to abuse on a grand scale.[3]

The merits of returning to a commodity-backed currency has been discussed for decades:

[U]sing present-day terminology, gold was the principal international reserve asset, although after the Great War the increasing use of foreign exchange as reserves led the variant of the gold standard in operation from 1925 to 1933 to be called a “gold exchange” standard. However, the essential element in the international gold standard — and this is a crucial point in contemporary discussions of a return to the gold standard — was that there was a close link between the domestic money supply in each country and its gold holdings. It was an “essential element of the classical gold standard… that the money supply must be limited by the gold reserves and a change in the gold reserves should be followed by a change in monetary policy.”  In part this link was reflected in “gold cover requirements,” such as the provision of United States law specifying the value of gold that had to “back” issuances of currency. More fundamental were the institutional arrangements in each country causing increased or decreased public gold holdings to lead respectively to a larger or smaller money supply.[4]


[1] Detlev S. Schlichter, Forty Years of Paper Money: Fiat currencies always end in hyperinflation and economic collapse. http://online.wsj.com/article/SB10001424053111903918104576500811399421094.html?mod=googlenews_wsj (August 15, 2011).

[2] For a fascinating discussion on this topic, see: Ali Khan, The Evolution of Money: A Story of Constitutional Nullifcation, 67 U. Cin. L. Rev. 393 at 402-403 (1993).

[3] Lewis D. Solomon, Local Currency: A Legal and Policy Analysis, 5 Kan. J.L. & Pub. Pol’y 59 at 64 (1996) [citations omitted].

[4] Kenneth W. Dam, From the Gold Clause Cases to the Gold Commission: A Half Century of American Monetary Law, 50 U. Chi. L. Rev. 504 at 508 (1983) [citations omitted].

In the United States, a respect for the norms of international law has been part and parcel to domestic law since the framing of the Constitution; “[i]n fact, the Framers held the Constitutional Convention in large part due to the perceived inability of the Confederation to uphold American obligations under international law.”[1]  This was confirmed by the U.S. Supreme Court in the famous 1796 case of Ware v. Hylton.[2]  Significant in the case is a dictum by Justice Samuel Chase:

If Virginia as a sovereign state, violated the ancient or modern law of nations in making the law of 29 October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law.”[3]

Here, Chase acknowledges the role played by the shifting norms of international law in the domestic law of the United States.  Both the “ancient” and “modern” norms are binding.  As the norms of international law change and expand with the times, so to does the law of the United States change with them.  And, as we can see by the offhandedness of the dictum, in 1796 this was not a controversial stance.  But the shifting nature of international law is a double-edged sword.  These norms can expand to encompass a broader respect for human rights (and we have seen almost uninterrupted progress in this regard for generations), but likewise there is a danger that the norms of international law can shrink, or regress as nations shirk their international obligations.

Indeed, jus cogens norms can decline as the standards of the international community decline.  But, likewise, these norms of the international community can become stronger and more vigorous, and on the whole the trend has been towards an increasing respect for human rights. Indeed, this is why it is all the more important to protect the ground that has been gained.  If crimes against jus cogens norms are not vigorously prosecuted, we run the risk that the progress made in the cause of human will simply slip away.

In the United States, there had been early attention to a significant number of international crimes that can be committed by private perpetrators and provide universal jurisdiction for criminal or civil sanctions, including piracy; war crimes; breaches of neutrality, territorial infractions, “aggression,” and other crimes against peace; unlawful capture of vessels; the slave trade; violence against foreign ministers and other officials; poisoners, assassins, and incendiaries[sic]; counterfeiters of foreign currency; banditti and brigands; terroristic publications; violation of passports; violation of safe-conducts; and more generally “all . . . trespasses committed against the general law of nations” and the treaties of the United States.

Today, the number of specific international crimes that can be committed by private individuals has increased from earlier categories to include, among others, the following: genocide; other crimes against humanity; apartheid; race discrimination; hostage-taking; torture; forced disappearance of persons; terrorism; terrorist bombings; financing of terrorism; aircraft hijacking; aircraft sabotage and certain other acts against civil aviation; certain acts against the safety of maritime navigation, including boatjacking; murder, kidnapping, or other attacks on the person or liberty of internationally protected persons; trafficking in certain drugs;  slavery;  and mercenarism.[4]

That the poisoners, assassins and arsonists of Vattel’s day might be tried in any court in any country was unlikely; in practice universal jurisdiction was most frequently applied to pirates, and later, slave-traders.
.  Today, these considerations are no longer academic, but practical.  The gains have been tremendous since the post-World War II era; horrendous practices such as apartheid, once carrying the full force of law in many places, is now considered a crime against the human race, punishable anywhere by means of universal jurisdiction.  Such offenders, who could previously be protected by sovereign immunity, now truly know no safe harbor.  In theory, at least.


[1] Ryan Goodman & Derek P. Jinks, Filartiga’s Firm Footing: Federal Common Law and International Human Rights, 66 FORDHAM L. REV. 463 (1997) [citation omitted].

[2] According to the Court in Filártiga vPeña-Irala, 630 F.2d 876 (2d Cir. 1980): “Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” See Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed. 568 (1796) (distinguishing between “ancient” and “modern” law of nations.)” 630 F. 2d at 881.

[3] Ware v. Hylton, 3 U.S. (3 Dall. )199 at 223-4

[4] Jordan J. Paust, The Reality of Private Rights, Duties & Participation, 25 MICH. J. INT’L L. 1229 At 1237-40 [citations omitted].

Can Jus Cogens Regress?

July 26, 2011

“States that respect human rights and operate on democratic principles tend to be the world’s most peaceful and stable.  On the other hand, the worst violators of human rights tend to be the world’s aggressors and proliferators.  These states export threats to global security, whether in the shape of terrorism, massive refugee flows, or environmental pollution.  Denying human rights not only lays waste to human lives; it creates instability that travels across borders.”[1]

The peremptory norms recognized by the international community as jus cogens, the law from which no sovereign derogation is permitted, appears to be an ever-expanding body of law.  There is little agreement among scholars as to precisely how jus cogens norms acquire their status, but when a norm has risen to such a level–  to appropriate a phrase from Justice Stewart– one knows it when one sees it.  There is little doubt, even among those critical of the expansion of jus cogens as a threat to traditional Westphalian notions of sovereignty, there is broad agreement that there indeed has been an expansion.[2]

But what makes a jus cogens norm, international consensus, can also break a jus cogens norm.  As the failure of important players in the international community to live up to basic standards of human rights becomes all too frequent, the risk becomes greater that these expanded body of jus cogens norms might erode away.

Thus, in Henkin’s words, “almost all nations observe almost all principles of international law… almost all of the time.”‘  When a nation deviates from that pattern of presumptive compliance, frictions are created? To avoid such frictions in a nation’s continuing interactions, national leaders may shift over time from a policy of violation to one of compliance. It is through this transnational legal process, this repeated cycle of interaction, interpretation, and internalization, that international law acquires its “stickiness,” that nation-states acquire their identity, and that nations come to “obey” international law out of perceived self-interest. In tracing the move from the external to the internal, from one-time grudging compliance with an external norm to habitual internalized obedience, the key factor is repeated participation in the transnational legal-process. That participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of emerging international society.[3]

Such a regression, disastrous to the cause of human rights, is a function of the nature of jus cogens itself.  The doctrine, though rooted in Enlightenment-era concepts of natural rights, has long been understood to be the product of the positive consent of nations.  It represents a voluntary concession of sovereignty for the sake of a global conscience.  The crimes against jus cogens are those so repugnant to the community of nations as the warrant universal condemnation.  The jus cogens perpetrator is a hostis humani generis, an enemy of all humanity.

But when the behavior at issue is commonplace, the danger of erosion of jus cogens becomes very real. When the global community does not take action to punish a behavior, or punishes inconsistently, the argument can be made that the norms are being abandoned by the global community.  That they are, in effect, no longer crimes jus cogens at all.


[1] Warren Christopher, In Our Own Best Interests:  How Defending Human Rights Benefits Us All (2002). At p. xix.

[2] See, e.g.: Jason Ralph, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society.  “In international law such rules are considered jus cogens, that is ‘a peremptory rule of law which may only be superseded by another peremptory rule’.”

[3] Koh, Harold Hongju, “Why Do Nations Obey International Law?” (1997).Faculty Scholarship Series. Paper 2101. http://digitalcommons.law.yale.edu/fss_papers/2101 at 2641 [citation omitted].

The modern doctrine of forum non conveniens

Forum non conveniens, literally “the forum not coming together,” is a common law doctrine by which a suit must be dismissed if the choice of forum, because of its geographical location, presents an undue burden on one or more of the parties.  In its most recent ruling on the subject, Sincohem Int’l v. Malayasia Int’l Shipping,[1] the Supreme Court offered a new synthesis of the federal doctrine of forum non conveniens.  In addition to resolving the central legal issue of case,[2] the unanimous opinion of the Court offered a compelling dicta: that the Sinochem case presented a textbook example of a forum non conveniens dismissal.

Since 2007 when Sinochem was decided, much has been made of the “textbook” language, as it seemed to go a long way toward clarification of the murky circumstances that warrant a forum non conveniens dismissal.   Indeed, the most pernicious problem surrounding the doctrine is the utter lack of consistency and predictability endemic to forum non conveniens litigation.  However, as we can plainly see from a new crop of forum non coveniens wildly divergent litigation, this problem has not be solved.

Two recent federal trial court cases make this point salient.  The wrongful death case arising from the Air France 447 crash was recently dismissed:

The U.S. District Court for the Northern District of California dismissed the plaintiffs’ first suit in October 2010, accepting the airline’s forum non conveniens argument that France was the natural jurisdiction for cases arising from the crash of Flight 447, given that most of the defendants were French.

[...]

The plaintiffs tried to get around this argument by dropping all French defendants from the suit, naming as defendants only the U.S. companies that manufactured various components to the crashed Airbus 330. As such, the plaintiffs argued that France was no longer an available venue for their complaint.

The San Francisco-based court rejected this ploy saying that plaintiffs “cannot purposefully defeat the availability of a foreign forum and then assert unavailability to defeat forum non conveniens dismissal.”[3]

Contrast that case with the highly politicized New York case Keren Elmaliach v. Bank of China Ltd.:

In Keren Elmaliach v. Bank of China Ltd., 102026/09, New York Supreme Court Justice Barbara R. Kapnick ruled that while banks generally have no duty to protect non-customers from intentional wrongs committed by its customers, the plaintiffs had alleged facts suggesting that the state-owned Chinese bank was specifically told that it was funding terrorism and took no action. Kapnick also refused to dismiss the case on forum non conveniens grounds.[4]

The differences of outcome in these two cases is striking.  For the point of view of a  forum non conveniens analysis, there is little difference if evidence is to be had in France or China.  Indeed, China is about as far away from New York as France is from California.  The same difficulties are present in either case, so why did opposite results occur?  If there is truly a “textbook” example of a forum non conveniens dimissal, then surely it ought to serve as a useful yardstick for measuring the likelihood of such a dismissal.  Yet, there is no consistency nor predictability to be had, and as will be shown in the course of this paper, this is a direct result of the failure of the forum non conveniens doctrine to keep up with changing technology, and a failure of adequate appellate oversight of a doctrine that permits too wide a berth for the discretion of the trial court.

Prerequisites for a forum non conveniens dismissal

The doctrine of forum non conveniens allows a case to be dismissed before a hearing on the merits, even when the court might otherwise have valid jurisdiction.[5]   In order to dismiss a case on the basis of forum non conveniens the trial court must determine that there are practical considerations which render the location of the court “excessively burdensome.”[6]   The trial judge is permitted wide latitude in making the determination whether or not to dismiss on grounds of forum non conveniens, with little room for appellate supervision.  With surprisingly little guidance or oversight coming from the courts above, there is a great deal of disparity and unpredictability in the application of this doctrine. However, some of the major Supreme Court cases have attempted to clarify these muddied waters.

To determine if a case ought to be dismissed under the doctrine, the trial court judge must first ascertain whether or not an alternative forum exists in which the plaintiff’s case can be heard; if not, a forum non conveniens motion cannot go forward.  If there is determined to be an adequate alternative forum, the judge then must apply a balancing test to decide if dismissal is appropriate because of the practical considerations resulting from the location of the litigation.  In this analysis there are a number of factors relating to both the “public and private interest” which the judge must take into consideration before deciding if the practicalities of the forum warrant the dismissal of the case.[7]   These factors can include the location of evidence, the hardship which litigating in the forum would present to the defendant, and the “relative means of the parties.”[8]   A court must weigh “multifarious”[9] factors to make its determination, in a process that can become clouded by the competing interests of the plaintiff and the defendant, as well as overarching concerns of international diplomacy and judicial economy.

The origins of forum non conveniens           

In 1947 the Supreme Court decided Gulf Oil Corp. v. Gilbert,[10] which still stands as one of the seminal cases in the development of modern forum non conveniens doctrine.  In this case, an action brought in New York by a resident against a corporation based in Pennsylvania was dismissed on the basis on forum non conveniens.   It is here that we find the Court’s first analysis of the factors which make up the forum non conveniens balancing test, and this has served as the foundation for the development of forum non conveniens doctrine in later cases.  The Gilbert court observed that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”[11]

In order to procure a forum non conveniens dismissal, the burden of proof rests upon the defendant to demonstrate compelling evidence that the forum is too burdensome.[12]  In practice, however, it seldom works out this way.  Indeed, Gilbert marks not only the first time the Supreme Court laid down this proscriptive principle of deference towards to the plaintiff’s choice of forum, it was simultaneously the first exception to this principle.  Although plaintiff’s choice of forum is purported to be given much weight, the analysis of the Gilbert court nevertheless concluded that the trial court’s decision to dismiss on forum non conveniens was not an abuse of discretion.[13]

In the case of Piper Aircraft v. Reyno, a wrongful death action was brought in United States federal courts on behalf of the Scottish victims of an air crash against the American manufacturer in United States federal court.[14]   In the Piper decision, the Court seems to have attempted to moderate its approach to forum non conveniens with an acknowledgement that there is nothing in the ruling which compels courts to ignore the possibility of an unfavorable change in law.    In upholding the dismissal by the district court, Justice Marshall noted that a viable forum awaited the defendants, namely the courts of the United Kingdom, where “there is no danger that [the plaintiffs] will be deprived of any remedy or treated unfairly.”[15]

There is a substantial degree of continuity between Gilbert and Piper, insofar as the former served as the theoretical foundation for the latter, and the latter was thoroughly rooted in the former.  The reasoning in the Gilbert case appears to have been refracted in the lens of the Piper ruling, and as a result this has led to a trend in later decisions which runs counter to the original doctrine as espoused in Gilbert, and even Piper itself, both of which cautioned that the test must weigh greatly in favor of the defendant in order to tip the scales against the plaintiff.  Yet the distinction here is often too subtle to meet the threshold required for an abuse of discretion on the part of the trial judge.  Thus there is not much that can be done on the part of the appellate courts to curb this distortion of the doctrine by the trial courts.

Standard of review

The decision whether or not to dismiss on grounds of forum non conveniens “is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion[.]”[16]  This is a very important feature of the doctrine, as it serves to shield the decision of the trial court from appellate oversight, so long as the trial court’s reasoning is not so egregiously incorrect as to constitute an “abuse of discretion.”  The Supreme Court has held fast to this standard.  For instance in the Koster case the Court maintained that, with respect to the forum non conveniens balancing test, “far from laying down a rigid rule to govern discretion we said, ‘each case turns on its facts.’”[17]  It is because of this loose standard of review that forum non conveniens analyses of different courts under similar circumstances can often lead to wildly unpredictable and contradictory results.

The lack of consistency and predictability in forum non conveniens litigation

The court in Piper seemed to fear that if the choice of law became a conclusive or even substantial consideration, the courts would “have to compare the rights, remedies, and procedures available.”[18]  The fear being that these concerns would take undue primacy in the already clouded calculus that is the forum non conveniens balancing test.  The unfortunate result, however, is that “forum non conveniens cannot really be relied upon in making decisions about secondary conduct — in deciding, for example, where to sue or where one is subject to being sued. The discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application, make uniformity and predictability of outcome almost impossible.”[19]  The lower courts do indeed take “rights, remedies, and procedures” into consideration, albeit with inconsistent results.

The telecommunication advances which have advanced globalization in recent decades have on the one hand increased the amount of complex transnational litigation and on the other have significantly eased the burden that this type of litigation once posed.  As the information age marches on, some of the decades-old concerns voiced by the courts which gave rise to the present incarnation of the doctrine seem out of date and anachronistic by modern standards.[20]  Appellate oversight of forum non conveniens doctrine has simply not kept pace with changes in technology.  The physical location of evidence or witnesses is the determinative factor it was in the days of Piper or Gilbert.  As Judge Newman wisely observed, “it will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit.”[21]

Changing the standard of review

One possible solution to the broken forum non conveniens doctrine is to alter the standard of appellate review for forum non conveniens dismissals, viz. changing it from the current abuse of discretion standard to a standard of de novo review, allowing for heightened appellate oversight.  At present the doctrine attempts to accomplish two conflicting goals, and in the process becomes susceptible to a vast disparity in interpretation.  And indeed, this schizophrenic nature of forum non conveniens was acknowledged in the Sinochem decision, where the Supreme Court felt it necessary to provide the lower courts something of a roadmap to this confused doctrine.

The Sinochem test streamlines the forum non conveniens analysis into three prongs, yet makes no provisions for its consistent application, and so the result is really no different that before, the application of the test still remains in the hands of the trial court alone, which, as we have seen, leads to unpredictable, and often contradictory, results.  As one commentator observed, the forum non conveniens balancing test “must weigh heavily in favor of the defendant before a court may dismiss, and the appropriate inquiry is not whether the trial court has reasonably balanced the factors, but whether the trial court’s balancing was correct.”[22]

Changing the standard of review would not limit the district court judge’s authority to dismiss based on forum non conveniens should the case so warrant.  A de novo standard would ensure that the analysis underlying the dismissal has been applied properly and in accordance with the standard as set out in Sinochem.  Thus, changing to a de novo standard of review ought to eliminate many of the difficulties posed by the doctrine in its present form. Otherwise, under the current regime of abuse of discretion review, the Sinochem ruling becomes yet another note in the multifarious chorus of forum non conveniens factors.  Short of implementing this new standard of appellate review there are no measures in place to assure that the correct weight is given to each factor of the balancing test and it is difficult to see how the Sinochem ruling will be enforced at all.

 

Conclusion

In a global community the number of international lawsuits brought in United States courts have inevitably increased, and in these sorts of cases the doctrine of forum non conveniens often occupies a place of central importance.  A forum non conveniens dismissal carries with it the potential that the case might never be heard at all.  Likewise, the rejection of a legitimate forum non conveniens motion can bring about a great deal of unnecessary litigation. Clearly this sort of inconsistency in application can be very unfair to plaintiffs and defendants alike, and is not what we want in our judicial system.

This presents a pressing public policy concern, and although the Sinochem decision did much to clear up procedural issues, the forum non conveniens analysis itself remains subject to only the loosest of oversight.  Although the rule of law set forth in Sinochem does help to put a finer point on the issue, it does not seem likely to change the current state of affairs unless further measures are taken. A change in the standard of review from abuse of discretion to de novo seems to be the most effective solution to the problem.  This would be the most effective way to correct the disparity and ensure that the proper balancing of factors is being made in the trial court’s forum non conveniens analysis.  It is imperative that this problem be addressed in order to properly oversee which cases truly warrant a forum non conveniens dismissal and which do not.


[1] Sinochem International Co., Ltd. v. Malaysia International Shipping Corporation, 549 U.S. 422 (2007)

[2] A district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is the more suitable arbiter of the merits of the case. Id. at Pp. 5–12.

[3] Travis Sanford, Court Again Bars Case Over Air France Crash, June 21, 2011 http://www.courthousenews.com/2011/06/21/37561.htm

[4] Brendan Pierson, Judge Allows Exploration of Bank’s Role in Terrorism, July 18, 2011, http://www.law.com/jsp/article.jsp?id=1202501543028&Judge_Allows_Exploration_of_Banks_Role_in_Terrorism

[5] Sinochem, 127 S. Ct. at 1190-1191.

[6] Wiwa v. Royal Dutch Petroleum Co., et. al., 226 F.3d 88 (2d Cir. 2000).

[7] Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).

[8] Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 341 (S. D. N. Y. 2003).

[9] American Dredging Co. v. Miller, 510 U.S. 443 (1994), 455.

[10] Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

[11] Id. at 502 – 509.

[12] Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S. D. N. Y. 2006).

[13] Gilbert, 330 U.S. at 509-512.

[14] Piper, 454 U.S. at 254.

[15] Id. at 255.

[16] Id. at 257.

[17] Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 528 [citation omitted].

[18] Piper, 454 U.S. at 251.

[19] American Dredging, 510 U. S. at 443.

[20] David W. Robertson, The Federal Doctrine of Forum Non Conveniens: “An Object Lesson in Uncontrolled Discretion, 29 Tex. Int’l L.J. 353, at 367. Illustrative of the problems that the doctrine of forum non conveniens represents as something of a judicial relic is Professor Roberston’s observation: “In 1947 the Gulf Oil Corporation 112 Court was persuaded that serious inconvenience would result from bringing a defendant to trial in New York on a case that belonged in Virginia. Consider what would have been involved in handling a Virginia matter in New York in that era. We had no commercial jet travel, no personal or office computers, no photocopy technology, no fax machines. Clerks and secretaries did not have electric typewriters, or even ‘white-out’ substances — we used manual typewriters and erasers.”  It is not simply that the old decisions are “out of touch” with the fast pace of the modern era, rather that the emphasis placed on these on these concerns is weighted too heavily in the forum non conveniens analysis.

[21] Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir. 1980)  (Newman, J., concurring), cert. denied.  Judge Newman goes on to opine that “[j]et travel and satellite communications have significantly altered the meaning of “non conveniens.”

[22] Jacqueline Duval-Major, One-Way Ticket Home: the Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650, 684 (1992).

The word “civilmoign” is a nonsense term that appears in Lon L. Fuller’s “The Case of the Speluncean Explorers.”

Now I realize that wherever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which really stands in need of such regulation is greatly overestimated. There are, of course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here some restraint on discretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free civilmoign system.

The word “civilmoign” has no meaning, but it does have purpose.  As James Boyle explains:

With Fuller’s characteristic love of nested insights, Handy then shows how problematic a task it is to pick these ‘foundational’ rules. Having gulled the unwary reader by referring to apparently uncontentious procedural rules of election law, Handy adds, “perhaps the area of basic principle should be expanded to include certain other rules such as those designed to preserve the free civilmoign  system.” We must have both form and substance, and Handy wants to restrict our ideas of formal justice to those “few fundamental rules of the game that must be accepted if the game is to go on at all.” But which rules exactly are those? Generations of students have wondered aloud just what exactly “the free civilmoign system” is, only to discover that one of their classmates said confidently “it must be property rights” while another thought it to be human rights and the third, the institutional framework of the market.

One might conclude from this that, long before Jacques Derrida and “dangerous supplementarity,” Lon Fuller was capable of showing us the inherent instability of any attempt to reconcile two concepts that both deny and depend on each other. In this case, the concepts were formal and substantive justice. Fuller was adept at demonstrating that the realists would have to put some limit on the idea that judges act as practical politicians, and yet would be unable to justify those limits in any uncontentious way wihout resorting to the same kind of formalism and essentialism they themselves had criticized. Yet he did not exempt his own alter ego from the same criticism.

James Boyle, Legal Realism and the Social Contract:Fuller’s Public Jurisprudence of Form, Private Jurisprudence of Substance. 78 Cornell Law Review 371 (1993)

It is important to remember, despite a recent onslaught of criticism from those who oppose the cause of human rights, the notion that crimes against jus cogens give rise to universal jurisdiction is quite an ancient one.  The commentaries of Renaissance- and Enlightenment-era jurists such as Alberico Gentili, Hugo Grotius, and Emer de Vattel serve as the very foundation of the law of nations as we know it today.  Anyone wishing to advance the argument that universal jurisdiction is a creation of the post-World War II era will have to contend with the copious body of writings that conclusively demonstrates that the origins of universal jurisdiction go back centuries earlier. Gentili, writing at the turn of the seventeenth century, is in many ways the progenitor of universal jurisdiction in its modern form:

Alberico Gentili (1552-1608) was born in San Ginesio, in the Marches region of central Italy.   n3 He studied law in the Bartolist faculty at Perugia, then took up legal practice and scholarly pursuits in the Marches. The arrival of the Inquisition in San Ginesio and the investigation of the strong Protestant convictions of members of the Gentili family precipitated Alberico’s abrupt departure with his father. Reaching England by 1580, he gradually established himself in Oxford, and was appointed Regius Professor of Law in 1587. After 1600, he became increasingly absorbed in legal practice in London, serving from 1605 until his death as an advocate for the Government of Spain in the English courts. He produced numerous works on Roman law, and wrote tracts on controversies of theology and British constitutionalism. His three books of most direct significance for international law, however, are De legationibus (DL) (1585), a work concerned with the law of embassies and the conduct of ambassadors that arose from his successful argument that the Spanish Ambassador Mendoza ought to be expelled rather than criminally punished for plotting against Queen Elizabeth; De jure belli (JB), a work that began as three tracts prepared in 1588-1589 during English debates on issues of war prompted by the Spanish Armada; and Hispanicae advocationis (1613), a collection of legal opinions from his practice published posthumously by his brother Scipio.[1]

Writing with a distinctlivey pre-modern frame of mind, Gentili was remarkable for fusing the disparate concepts of natural law and positive law:

[A]s one reads Gentili’s equation of natural law and the law of nations, it seems to bring the two concepts together on the other side—the empirical side—of the rational/empirical divide.  We find out what the law of nations is by diligently investigating the laws and customs that are in use among all nations of men; we ask traders, for example, for stories about foreign lands. What Gentili equates with the law of nature are the laws and customs that have seemed acceptable to all nations (or, as it turns out, most nations—for “as the rule of a state and the making of its laws are in the hands of majority of its citizens, just so is the rule of the world in the hands of the aggregation of the greater part of the world”)—which have established themselves in the world, not necessarily by any explicit agreement but by “successively,” nation by nation, seeming acceptable to most men. That is plainly an empirical matter.  And if the law of nations in this sense is being equated with the law of nature, then we have moved the whole jurisprudential enterprise over from the side of pure moral reason to the side of positive legal inquiry.[2]

Many today would disagree with Gentili’s worldview.  Particularly in postivist quarters, Gentili’s reliance on notions of natural law are disquieting.  In contrast to this is Gentili’s surprisingly modern idea that “the rule of the world [is] in the hands of the aggregation of the greater part of the world.”  Here, echoing Francisco Vitoria’s global republic, res publica totius orbis, we see that Gentili, while acknowledging the positive law of the sovereign, also accedes to overarching role played by jus cogens, the compelling law of nature.

That the views of antiquity are often predicated on superstitious or religious beliefs is often considered to undermine the applicability of these sources to modern discourse.  Though this is irrelevant when considering the history of the legal doctrines or jus cogens and universal jurisdiction, it is relevant to assessing to what extent we should still find commentators like Gentili persuasive today.

The law of nations in antiquity has been dismissed because of its allegedly religious character.  This feature is what made it an essentially primitive legal system.  To propose that ancient international law was primitive assumes that religious belief provided the principles of State behavior, as well as the sanctions for the enforcement of those norms. [...] It matters whether religion was ostensibly the sole source of antiquity’s law of nations. [...] [P]rimitive law also embraced custom as a source for norms of behavior.  Religion and custom can act as complementary forces in a society.  But they can also compete with each other, with custom acting as an antidote to the particularistic strictures of belief and ritual.[3]

The early jurists of international law undoubtedly relied on conceptions of the natural law that have fallen out of fashion among modern legal scholarship.  Yet, no matter how one feels about the philosophical arguments that underpin Gentili’s ideas, there can be no doubt that the idea of jus cogens as international Grundnorm is an ancient one.


[1] Benedict Kingsbury, Confronting Difference : The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment. 92 A.J.I.L. 713 at 713.

[2] Jeremy Waldron, Ius Gentium: A Defense of Gentili’s Equation of the Law of Nations and the Law of Nature (2008). New York University Public Law and Legal Theory Working Papers. Paper 99 at 3.

[3] Benedict Kingsbury, Confronting Difference : The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment. 92 A.J.I.L. 713 at 713.

Here is an interesting comment on the issue, directly rebutting Kontorovich and Art:

By extending the scope of its criminal law beyond its borders, the prescribing state condemns and prohibits conduct that takes place on the territory of another state and thus interferes with the non-intervention aspect of the principle of national sovereignty, which limits a state’s authority to regulate extraterritorial matters.  A state that claims that its criminal laws are applicable on foreign territory affects the rights and interests of the territorial state. n20 The exercise of prescriptive jurisdiction constitutes not a physical but a normative intervention on the other state’s territory.  As regards the lawfulness of extraterritorial prescriptive jurisdiction, two approaches can be distinguished under international law. According to the traditional approach as taken by the Permanent Court of International Justice in the famous 1927 Lotus case, states are free to extend the application of domestic criminal law over acts occurring abroad there exists a prohibitive rule to the contrary. According to the prevailing modern view, however, states are prohibited from legislating on extraterritorial criminal matters unless international law provides for an explicit permission.  The decisive difference between the two approaches is the burden of proof; according to the traditional view, the state that opposes another state’s jurisdictional assertion must prove the existence of a rule under international law prohibiting the assertion of criminal jurisdiction and according to the modern approach, by contrast, the state that asserts extraterritorial jurisdiction bears the burden of proof.

Julia Geneuss, Universal Jurisdiction Reloaded?: Fostering a Better Understanding of Universal Jurisdiction ICJ 7 5 (945), 1 November 2009.

And a bit more about the assertion of universal jurisdiction, not from the academic realm but from the practical realm of the international judiciary:

La législation belge qui institue la compétence universelle in absentia pour les violations graves du droit international humanitaire a consacré l’interprétation la plus extensive de cette compétence … L’innovation de la loi belge réside dans la possibilité de l’exercice de la compétence universelle en l’absence de tout lien de la Belgique avec l’objet de l’infraction, la personne de l’auteur présumé de l’infraction ou enfin le territoire pertinent. Mais après les tragiques événements survenus en Yougoslavie et au Rwanda, plusieurs Etats ont invoqué la compétence universelle pour engager des poursuites contre des auteurs présumés de crimes de droit humanitaire; cependant, à la différence du cas de M.Yerodia Ndombasi, les personnes impliquées avaient auparavant fait l’objet d’une procédure ou d’un acte d’arrestation, c’est-à-dire qu’un lien de connexion territoriale existait au préalable.

Roger O’Keefe, Universal Jurisdiction — Clarifying The Basic Concept,

ICJ 2.3(735). September 2004 (quoting Judge Ranjeva).

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